Shambhu Prasad Yadav v. State of Bihar — 1994 DIGILAW 133 (PAT)

JUDGMENT S. B. Sinha, J. The petitioners in this application have prayed for issuance of a writ of or in the nature of mandamus directing the respondents to pay their salary for holding their respective posts from 7th of November, 1985, i.e. from the date the Ram Lakhan Singh Yadav College, has been made a constituent Unit of the Bihar University. 2. In the alternative, it has been prayed that the respondent State be directed to accord sanction of different teaching and non-teaching posts in terms of the staffing pattern and absorb them against such sanctioned posts with a further direction to the respondent-State to release the salary, in terms of the resolution of the respondent-State as contained in memo No. 986 dated 10th of May, 1991 and circulated by the Bihar University vide its letter No. 3587 dated 5th of December, 1981 as contained in Annexures 1 and 2 to the writ application. 3. Ram Lakhan Singh Yadav college, situated at Bettiah, was an affiliated college under the Bihar University. The said college was taken over and made a constituent unit of the Bihar University on and from 7th November, 1985. 4. According to the petitioners they were appointed in the post of Lecturer, Music Instructor. Laboratory Incharge in different Department as also Typist, Assistant, Peon etc. by the governing body of the said College in terms of an alleged advertisement made in the year 1982. 5. The petitioner Nos. 1, 2 and 3 were said to have been appointed in Class III posts in terms of the offer of appointment as contained in Annexure 3 and 4 series. He stated that in the year 1983 another advertisement was issued pursuant whereof petitioner Nos. 4 to II were appointed against non-teaching posts by the Selection Committee of the governing body of the college. The offers of appointments of petitioner Nos. 4 to 11 are contained in Annexure-5 series. 6. The petitioners have further contended that another advertisement was issued in September, 1985 for appointment of different teaching and non-teaching posts and the petitioner Nos. 12 to 16 was appointed in October 1985 and they joined their respective posts in the between the period 21st October. 1985 to 6th November, 1985, although offers of appointment were issued in between 21.10.1985 and 5.11.1985 with effect from 17.10.1985. 7. 12 to 16 was appointed in October 1985 and they joined their respective posts in the between the period 21st October. 1985 to 6th November, 1985, although offers of appointment were issued in between 21.10.1985 and 5.11.1985 with effect from 17.10.1985. 7. It is stated that as the said posts were not allegedly sanctioned, the name of the petitioners had not been shown in the list of the teaching and non-teaching staff whose services were taken over by the University nor their salary has been released. 8. It has been contended that the Bihar State University has laid down norms for staffing pattern of the Universities and the colleges depending on the number of the students. 9. It has been contended that the State of Bihar itself has adopted a policy decision by reason of resolution dated 10th of may, 1991 as contained in Annexure-1 to the writ application where by non-teaching employees, prior to 10th of May, 1986 were directed to be absorbed and services of those employees, have been terminated. 10. It has therefore, been contended that the petitioners should be paid their salary and/or the State should sanction the post on the basis of the staffing pattern in terms of the aforementioned resolution. 11. A counter affidavit has been filed on behalf of the respondent No. 1 wherein inter-alia it has been stated that in the year 1979, the Bihar University sanctioned 13 posts of lecturers and 10 posts for non-teaching staffs (Class III and IV). It has been alleged that after the college was made a constituent nit, the management started indulging in issuing appointment letters to the teaching and non-teaching posts in complete disregard to the teaching and non-teaching posts in complete disregard to the Act and statutes of the University and without there being any sanctioned posts available. 13. The matter was enquired by the Vigilance Department and after a thorough investigation it submitted a report dated 18.5.1992, from a perusal whereof, it would appear that all sorts of bung lings and male-practices were committed by the Management of the college and the names of various teaching and non-teaching staffs were included. A copy of the said report is contained in Annexure-A to the counter affidavit. 14. A copy of the said report is contained in Annexure-A to the counter affidavit. 14. It has been stated that taking advantage of the fact that the University has not seized the proceeding book immediately after taking over of the college, the governing body of the college started manipulation. It has further been stated that even a Three Men Committee enquired into the matter and have reported that 51 teachers and 57 non teaching staffs were working in the College in question. Even the reports submitted by the Three Men Committee do not contain the names of the petitioners. 15. It has further been contended that in terms of Section 35 of the Bihar State University Act, 1976 as the governing body has no right to appoint against unsanctioned post, the appointment of the petitioners must be held to be illegal. It has further been stated that the petitioner has not been found to be working in the college in the question. 16. The respondents in this convection has annexed a chart showing the names of the non teaching staff who had been working at the time of take over of the College. 17. The respondent No.2-University has also filed a counter affidavit, It has been stated that the University never granted any approval on appointment of the teaching and non-teaching staffs and they have repeatedly asked the concerned principal to terminate such appointments, A copy of the letter dated 30.7.1993 in this connection has been annexed and marked as Annexure-A to the counter affidavit. It has been stated that the State Government with out holding any enquiry declared several colleges to be taken over as constituent units of the University. Rejoinders to the said counter affidavits have been filed by the petitioners, wherein it has been stated that the Vigilance Department of the State Government had no jurisdiction to make an enquiry and in any event, the said report is not complete and thus cannot be relied upon. 18. It was further stated that the State is bound to appoint teaching and non-teaching staff in accordance with the staffing pattern. It has further been stated that even the resolution of the State Government dated 10th May, 1991 has not been considered, pursuant whereof the Vice Chancellor of the Universities had been directed to place their proposal with regard to such employees but no such proposal has been submitted. 19. It has further been stated that even the resolution of the State Government dated 10th May, 1991 has not been considered, pursuant whereof the Vice Chancellor of the Universities had been directed to place their proposal with regard to such employees but no such proposal has been submitted. 19. It has been stated that Annexure-B does not contain the signature of Members purported to be constituting the Three Member Committee and thus Annexure-B cannot be relied upon. 20. It has further been stated that several representations were filed by the petitioner and the representations have been forwarded by the principal of the College. 21. The learned counsel appearing on behalf of the petitioner has relied upon a decision of this court in CWJC No. 8730 of 1986 (Kiron Prakash and others Vs. State of Bihar and others) and other analogous cases which is contained in Aunexure-11 to the rejoinder and submitted that the State as also the University is bound to act pursuant there to. 22. Reliance has also been placed upon an order passed in C.W.J.C. No. 8670 of 1992 (Ajay Kumar Sharma and ors. Vs. State of Bihar) and it was submitted on the basis thereof that following the same, this court should direct payment of salary to the petitioners. The very fact that the petitioners have sought for issuance of a writ of or in the nature of mandamus directing the respondents to sanction the post of teaching and non-teaching staff proves beyond any shadow of doubt that the posts in question are not sanctioned. 23. In fact it has not been disputed that the State Government has not accorded sanction of the said post in exercise of its power conferred under section 35 of the Bihar State Universities Act, 1976. 24. It is now well known by various decisions of this court that any appointment made in contravention of the provision of Section 35 of the Act is a nullity. 25. Recently a Division Bench of this court in Manoj Prasad & ors. Vs. Ranchi University and others reported in 1993 (2) BLJR 893 held as follows : "Once it is held that the appointment were illegal and they stood terminated by separate orders issued in May, 1988 there is no question of payment of wages to the petitioners. It is not disputed that from May, 1988 onwards till August. Vs. Ranchi University and others reported in 1993 (2) BLJR 893 held as follows : "Once it is held that the appointment were illegal and they stood terminated by separate orders issued in May, 1988 there is no question of payment of wages to the petitioners. It is not disputed that from May, 1988 onwards till August. 1989, the petitioners were not paid their wages. From September, 1989 to January, 1991 the then Principal without any authority permitted them to work and paid them their wages despite the orders of termination of their services. That would not clothe the petitioners with a right to continue to receive wages from the college. The claim of wages is dependent upon the subsistence of employer employee relationship. If the services of the petitioner stood terminated in May, 1988, and that order was never recalled set aside or stayed by any competent authority the petitioners will not be justified in claiming wages because the ceased to be employees of the college. Their claim for wages has, therefore, no merit. We may only observe that this is not the solitary instance where such illegalities have been discovered. The educational system in this State is in a shainbles and the whole system has come to a grinding half for many reasons: one of them is that despite a ban imposed by law the Principles of various colleges and some cases Governing Bodies, have been making illegal appointments against unsanction posts for ulter for considerations. The fund granted to the colleges by the University is based upon the sanctioned posts. When that amount is sought to be distributed amongst a larger number of employees, most of them with illegally appointed, it gives rise to resent went on the part of genuinely appointed teachers who are either not paid their salary in full, or do not receive any salary at all for several months. Any effort to deal with such illegal appointments gives rise to lawlessness and the atmosphere in the colleges is completely vitiated. Unless the State and the University authorities take firm action against such Principals and the members of the Governing body, the situation is not likely to improve." 26. Yet another Division Bench of this Court in Gopi Krishna Pathak Vs. Ranchi University reported in 1993(2) PLJR 897 reiterated the said view. Unless the State and the University authorities take firm action against such Principals and the members of the Governing body, the situation is not likely to improve." 26. Yet another Division Bench of this Court in Gopi Krishna Pathak Vs. Ranchi University reported in 1993(2) PLJR 897 reiterated the said view. It has further been held by the Supreme Court or India in State of Orissa Vs. Sukanti Mohapatra reported in 1993(2) S.C.C. 486 held that any appointment made in contravention of mandatory provision is a nullity. 27. Reference in this connection may also be made to Teja Prasad vs. State of Bihar reported in 1992(2) PLJR 567 as also a recent decision of this Court in Sitaram Thakur ys. State of Bihar reported in 1994(1) PLJR 68, as also the cases reported in 1994(1) PLJR 366 1994(1) PLJR 386 and 1993(2) PLJR 618. 28. It is true that in a given case this court may direct payment of salary to those persons who had been actually working despite their irregular nature of appointment but a decision rendered in those case should be confined to the facts thereof. 29. In this case, the respondents have categorically stated that petitioner's name were included as appointees of the governing body of the college by adopting a back door method. In fact they are not appointed in sanctioned posts. Even the Three men Committee as also the Vigilance Department had not included their names as employees working in the said college as non-teaching staff. 30. The Vigilance Department in its report has further found that a great deal of bungling has been done by the governing body of the college taking advantage of the fact that the proceeding book and other documents maintained by the college have not immediately been seized by the University upon taking over of the college which paved the way of the governing body to make manipulations and bungling in inserting the name of various persons as appointees of the college. 31. It is, therefore, evident that there exists a bonafide and serious doubt as to whether the petitioners had been working in the said colleges or not. Such a disputed question of fact cannot be determined by this court in exercise of its jurisdiction under articles 226 of the Constitution of India. 32. 31. It is, therefore, evident that there exists a bonafide and serious doubt as to whether the petitioners had been working in the said colleges or not. Such a disputed question of fact cannot be determined by this court in exercise of its jurisdiction under articles 226 of the Constitution of India. 32. We are further of the opinion that this court cannot direct the State of Bihar to accord sanction. We, are, however, of the view that the State of Bihar as also the concerned Universities would implement its own policy decisions and thus it is not necessary to issue a specific writ in this regard. As and when posts are sanctioned on the basis of staffing pattern or otherwise the appointments should be made strictly in accordance with the provisions of Bihar State Universities Act and the Statutes framed there under by the Respondent-University as also upon compliance of the provisions of Articles 14 and 16 of the Constitution of India. 33. For the reasons aforementioned, there is no merit in this application which is accordingly dismissed. Shashank Kumar Singh, J. 1 agree Application dismissed.